When the assignments of error are very numerous, it is
practically found necessary to consider but a few of them.
A special finding of facts referred to in acts allowing parties
to submit issues of fact in civil cases to be tried and determined
by the court is not a mere report of the evidence, but a finding of
those ultimate facts upon which the law must determine the rights
of the parties.
If the findings of fact in such case be general, only such
rulings of the court in the progress of the trial can be reversed
as are presented by a bill of exceptions, which bill cannot be used
to bring up the whole testimony for review.
In cases brought by appeal from the supreme courts of the
territories, this Court cannot consider the weight or the
sufficiency of the evidence, but only whether the facts found by
the court below support the judgment, and whether there was any
error in rulings, duly excepted to, upon the admission or rejection
of evidence.
The statute of the Territory of New Mexico requiring its supreme
court to review causes in which a jury has been waived in the same
manner and to the same extent as if it had been tried by a jury
makes no essential change in the previous practice, and cannot
affect the power of this Court under the Act of April 7, 1874, c.
80, 18 Stat. 27.
If a court can only review cases tried without a jury as it
would review cases tried by a jury, it can only review them for
errors apparent upon the record or incorporated in a bill of
exceptions.
Where a jury is waived, the findings of fact by the court have
the same force and effect as the verdict of a jury, and the
appellate court will not set aside the findings and order a new
trial for the admission of incompetent evidence if there be other
competent evidence to support the conclusion.
No variance between the allegations of a pleading and the proofs
offered. to sustain it is material unless it be of a character to
mislead the opposite party. This rule is applied to sundry
assignments of error.
In an action to recover for injuries suffered by reason of
disease's being communicated to herds of plaintiffs' cattle through
negligence of the defendants in handling and managing their herds
of cattle, allegations concerning the particular spot where the
disease was communicated are not material, and may be disregarded,
especially if never called to the attention of the trial court.
Page 163 U. S. 469
Witnesses not experts may testify as to symptoms observed by
them in the progress of the disease.
The plaintiff being in uncontroverted possession of the land on
which his cattle were grazing, it is immaterial in this action
whether his possession was lawful.
The objections to the admissibility of the testimony of the
chief of the veterinary division of the Department of Agriculture,
and of others, as experts have no merit.
The court was not bound to find upon the facts that the
plaintiff's were guilty of contributory negligence; what care it
was necessary for the plaintiffs to take, depended upon
circumstances, and was a proper question for the court.
It is to be regretted that the defendants found it necessary to
multiply their assignments to such an extent.
This was an action originally begun in the District Court for
the Third Judicial District for the County of Dona Ana, New Mexico,
by the appellees, constituting the firm of Lynch Brothers, against
the appellants, who are members of the firm of Grayson & Co.,
for loss and damage to a herd of cattle by a disease known as
"Texas cattle fever," claimed to have been communicated to them by
certain cattle owned by defendants, which had been shipped from
infected districts in Texas, and permitted to roam over plaintiffs'
range. There were two counts in the declaration, alleging the
communication of the disease in two different counties, but in
other respects, the two counts were alike.
The declaration alleged, in substance, that plaintiffs, being in
the peaceable possession of a certain cattle range suitable for
pasturage, watering and raising cattle, had pastured and grazed on
said lands a large number of meat cattle, which were entirely
healthy and free from any contagious or infectious disease, all of
which the defendants knew, and that defendants negligently and
willfully, against the remonstrance of the plaintiffs, turned in
upon said lands and premises, among plaintiffs' cattle, a large
number of their cattle infected with a contagious and fatal disease
known as "Texas cattle fever." That defendants knew that their
cattle were so infected and were liable to communicate the disease
to plaintiffs' cattle, by reason whereof, and through the
carelessness and negligence of the defendants, the disease was
communicated to plaintiffs'
Page 163 U. S. 470
cattle, four hundred of which died and the remainder, namely,
one hundred head, were rendered worthless in consequence of such
disease.
Defendants interposed a general plea of not guilty, and, a jury
being waived by an agreement in writing, the case was tried by the
district court, which, having heard the evidence and arguments of
counsel, found the issue in favor of the plaintiffs, and entered a
judgment against the defendants for the sum of $5,200 damages,
together with their costs.
Thereupon defendants, after unsuccessfully moving for a new
trial, prayed an appeal to the supreme court of the territory,
which made a finding of facts substantially to the effect that
there were in the State of Texas certain districts which were
permanently infected with germs of splenetic fever, Texas fever, or
Texas cattle fever, and that Oak and Bee Counties were a part of
such infected districts; that a part of defendants' cattle were
shipped by them from Oak and Bee Counties and unloaded at Hatch
station, in the Territory of New Mexico, and were from there driven
on foot, along the public road, across the range of the plaintiffs
to the range of the defendants, adjoining plaintiffs' range, where
they were turned loose to graze with other cattle upon defendants'
range; that defendants were notified by plaintiffs, and thus had
knowledge of the probable existence of such disease in said
infected districts and said counties at the time they drove their
said cattle from said counties across plaintiffs' range; that
defendants' cattle brought with them the germs of an infections and
communicable disease known as "splenetic" or "Texas fever," and
communicated such disease to plaintiffs' cattle, either on the
public road, on plaintiffs' range, or on defendants' range, and
plaintiffs' cattle became infected with the germs of such disease,
and thereby sickened, and many of them died, and the plaintiffs
sustained damage thereby to the amount of $5,200; that before
defendants' cattle were driven across plaintiffs' range, plaintiffs
notified defendants that their cattle would be liable to
communicate Texas fever to plaintiffs', and requested them to
abstain from driving their cattle across plaintiffs' range; that
afterwards, and notwithstanding plaintiffs' request, defendants
Page 163 U. S. 471
drove their said cattle across plaintiffs' range, in the manner
heretofore stated, by reason of which said disease became
communicated to plaintiffs' cattle.
Upon this finding, the court ordered a judgment to be entered
affirming the judgment of the court below, and allowed an appeal to
this Court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
In this case, which was tried by the court without a jury, there
are fifty-three assignments of error taken to the introduction of
much of the testimony and to the finding of the principal facts. As
usual when the assignments are so numerous, it will be necessary to
consider but few of them.
1. Thirteen of these assignments are taken in different form to
the action of the court in holding that, upon a trial by the court,
the admission of improper, incompetent, irrelevant, or immaterial
evidence was no cause for reversal; that in such case, on appeal,
the court will give no weight to such testimony in the
determination of such appeal, but will not reverse the judgment
because it was admitted unless it appears that the court in making
its decision relied upon such irrelevant evidence; that a finding
of facts in a case at law, tried without a jury, is conclusive
where there is sufficient evidence to found it upon, even though
the evidence be conflicting; in refusing to pass upon questions of
law and fact apparent upon the face of the record, and in refusing
to review the cause and pass upon the evidence as upon a hearing
de novo.
The position of the defendants in this connection is that
whatever may be the practice in the federal courts under the
Revised Statutes, or of the courts in other territories, the laws
of New Mexico require the supreme court, in passing upon cases
tried in the court below without a jury, practically
Page 163 U. S. 472
to retry the case upon the law and facts, as though it were an
appeal in equity.
In support of this, our attention is called to three statutes
upon the subject of hearings in the supreme court, by one of which
(Compiled Laws, sec. 2060),
"trial by jury may be waived by the several parties to any issue
of fact in the following cases: (1) by suffering default by failing
to appear at the trial, (2) by written consent in person or by
attorney, filed with the clerk,"
and by the second of which (sec. 2190),
"the supreme court, in appeals or writs of error, shall examine
the record, and on the facts therein contained alone shall award a
new trial, reverse or affirm the judgment of the district court, or
give such other judgment as shall be agreeable to law."
There is clearly nothing in these statutes which lays down a
different rule from that ordinarily pursued in appellate courts. If
the case be tried by jury, and reviewed upon writ of error, the
power of the appellate court is limited to affirming the judgment
or reversing it for errors apparent upon the record and remanding
it for a new trial as specified in this section. If it be an appeal
in equity, the court retries the case upon the evidence in the
court below, and gives such judgment as may be agreeable to law. No
mention is made in this section of common law cases tried without a
jury, and we perceive no necessity for our supplying the omission.
So far as this class of cases is concerned, they are left to be
determined by the legal principles applicable to them in other
jurisdictions, and, as regards the federal practice, this Court has
held in a series of cases that the special finding of facts
referred to in the acts allowing parties to submit issues of fact
in civil cases to be tried and determined by the court is not a
mere report of the evidence, but a finding of those ultimate facts
upon which the law must determine the rights of the parties, and if
the findings of fact be general, only such rulings of the court in
the progress of the trial can be reversed as are presented by a
bill of exceptions, and that in such cases a bill of exceptions
cannot be used to bring up the whole testimony for review any more
than in a trial by jury.
Morris v.
Jackson, 9 Wall. 125;
Kearney v.
Case, 12 Wall.
Page 163 U. S. 473
275;
Miller v. Life Insurance
Co., 12 Wall. 385;
Insurance
Co. v. Folsom, 18 Wall. 237;
Insurance
Co. v. Sea, 21 Wall. 158;
Jennisons
v. Leonard, 21 Wall. 302;
Tyng v.
Grinnell, 92 U. S. 467;
Insurance Co. v. Boon, 95 U. S. 117;
The Abbotsford, 98 U. S. 440.
So too, in cases brought here by appeal from the supreme courts
of the territories, we have several times held that we cannot
consider the weight or the sufficiency of the evidence, but only
whether the facts found by the court below support the judgment and
whether there was any error in rulings, duly excepted to, upon the
admission or rejection of evidence.
Idaho & Oregon Land Co.
v. Bradbury, 132 U. S. 509;
San Pedro &c. Co. v. United States, 146 U.
S. 120;
Smith v. Gale, 144 U.
S. 509;
Mammoth Mining Co. v. Salt Lake Machine
Co., 151 U. S. 447.
By the Act of April 7, 1874, c. 80, 18 Stat. 27, the appellate
jurisdiction of this Court "over the judgments and decrees of the
territorial courts in cases of trial by jury shall be exercised by
writ of error, and in all other cases by appeal," with a
proviso
"that on appeal, instead of the evidence at large, a statement
of the facts in the case in the nature of a special verdict, and
also the rulings of the court on the admission or rejection of
evidence, when excepted to, shall be made and certified by the
court below, and transmitted to the supreme court, together with a
transcript of the proceedings and judgment or decree."
It was said in
Idaho & Oregon Land Co. v. Bradbury,
132 U. S. 509,
132 U. S. 513,
that the necessary effect of this enactment was that no judgment or
decree of the highest court of a territory could be reviewed by
this Court in matter of fact, but only in matter of law or, as was
said by Chief Justice White in
Hecht v. Boughton,
105 U. S. 235,
105 U. S.
236:
"We are not to consider the testimony in any case. Upon a writ
of error, we are confined to the bill of exceptions, or questions
of law otherwise presented by the record, and upon an appeal, to
the statement of facts and rulings certified by the court below.
The facts set forth in the statement, which must come up with the
appeal, are conclusive on us. Under these circumstances, the form
of proceeding to get a
Page 163 U. S. 474
review is not of so much importance as certainty about what is
to be done."
Indeed, no great stress was laid by the plaintiffs in error upon
the above section of the Compiled Laws, their principal reliance
being upon sec. 4, c. 1, Laws 1889, which reads as follows:
"SEC. 4. In all cases now pending in the supreme court or which
may hereafter be pending in the supreme court and which may have
been tried by the equity side of the court, or which may have been
tried by a jury on the common law side of the court, or in which a
jury may have been waived and the cause tried by the court or the
judge thereof, it shall be the duty of the supreme court to look
into all the rulings and decisions of the court which may be
apparent upon the records or which may be incorporated in a bill of
exceptions, and pass upon all of them, and upon the errors, if any
shall be found therein, in the rulings and decisions of the court
below, grant a new trial, or render such other judgment as may be
right and just and in accordance with law, and said supreme court
shall not decline to pass upon any question of law or fact which
may appear in the record, either upon the face of the record or in
the bill of exceptions, because the cause was tried by the court or
by the judge thereof without a jury, but shall review said cause in
the same manner and to the same extent as if it had been tried by a
jury."
By this statute it is made the duty of the supreme court of the
territory to look into and pass upon all the rulings and decisions
of the court below which may be apparent upon the record or which
may be incorporated into a bill of exceptions, and if any error be
found, grant a new trial, or render such other judgment as may be
right and just and in accordance with law. And the supreme court
must not decline so to do because the case was tried by the court
without a jury, but must review said cause in the same manner and
to the same extent as if it had been tried by a jury.
It is difficult to perceive wherein this statute makes any
essential change in the previous practice, or, even if it did, how
it could affect the power of this Court under the statute
Page 163 U. S. 475
of 1874, above cited. It certainly does not in terms require
that the court shall rehear the case upon the testimony as if it
were an appeal in equity, but limits its powers of review to such
questions as are apparent upon the record, or incorporated in a
bill of exceptions. And in cases where the cause is tried by the
court without a jury, it can only review it in the same manner, and
to the extent, as if it had been tried by a jury. Now the Seventh
Amendment to the Constitution expressly provides that no fact tried
by a jury shall be otherwise reexamined in any court of the United
States than according to the rules of the common law, and in
Parsons v.
Bedford, 3 Pet. 443,
28 U. S. 448,
it was said that
"the only modes known to the common law to reexamine such facts
are the granting of a new trial by the court where the issue was
tried, or to which the record was properly returnable, or the award
of a
venire facias de novo by an appellate court for some
error of law which intervened in the proceedings."
See also Lincoln v. Power, 151 U.
S. 436,
151 U. S. 438;
Railroad Company v. Fraloff, 100 U. S.
24,
100 U. S.
31.
The seventeenth section of the act creating New Mexico a
territory, Act of September 9, 1850, c. 49, 9 Stat. 446, 452,
provides
"that the Constitution and all laws of the United States which
are not locally inapplicable shall have the same force and effect
within the said Territory of New Mexico as elsewhere within the
United States."
It would seem, then, to be entirely clear that if a court can
only review cases tried without a jury as it would review cases
tried by a jury, it can only review them for errors apparent upon
the record or incorporated in a bill of exceptions. If the statute
had said that the supreme court should review the cause in the same
manner and to the same extent as if it were a suit in equity, there
would be room to contend that the case should be retried upon the
testimony, although even in such case the power of this Court would
be limited by the act of 1874. But if this power be limited to a
review in the same manner and to the same extent as if the case had
been tried by jury, its powers are only such as could be exercised
upon a writ of error.
Page 163 U. S. 476
We think there is nothing in this statute to take this case out
of the general rule, so frequently announced, that in cases where a
jury is waived, the findings of fact by the court have the same
force and effect as the verdict of a jury, and that the appellate
court will not set aside the findings and order a new trial for the
admission of incompetent evidence if there be other competent
evidence to support the conclusion. The evident purpose of Compiled
Laws, sec. 2060, was to give to litigants the option of having
their causes tried by jury or by the court, and we think there is
nothing in these statutes to indicate that the findings of the
court were not intended to have the same force and effect as a
special verdict of a jury, and that where there is any testimony to
support such findings, the power of the appellate court is limited
to determine whether the facts so found are sufficient to support
the judgment.
2. Ten assignments are addressed to questions of variance
between the declaration and the facts, as specifically found by the
court.
(a) The first of these questions relates to the allegation in
the declaration that the disease of which the plaintiffs' cattle
died, and which was communicated by the defendants' cattle, was
known as "Texas cattle fever," whereas the finding of the court was
that plaintiffs' cattle died of "Texas fever." In other portions of
the finding, however, the disease is spoken of as commonly called
"splenetic fever," "Southern cattle fever," "Texas fever," or
"Texas cattle fever," and it would appear that it was known by all
these names, although the witnesses spoke of it generally as "Texas
fever." Assuming that to be its proper designation, defendants
could not possibly have been misled, since the introduction of the
word "cattle" was evidently intended to indicate merely that it was
a fever originating in Texas and prevailing among cattle. While
cases may doubtless be found to the effect that descriptive
allegations of this kind must be proved with great strictness, the
tendency of modern authorities is to hold that
"no variance between the allegations of a pleading and the
proofs offered to sustain it shall be deemed material unless it be
of a character to
Page 163 U. S. 477
mislead the opposite party in maintaining his action or defense
on the merits."
Nash v. Towne,
5 Wall. 689,
72 U. S. 698;
Robbins v. Chicago
City, 4 Wall. 657;
Catlin v. Gunter, 11
N.Y. 368.
(b) A variance is also claimed between the allegation that the
disease was a "contagious" one and the finding of the court that
Texas fever is not communicated by contact, but is an "infectious"
disease. There is doubtless a technical distinction between the two
in the fact that a contagious disease is communicable by contact or
by bodily exhalation, while an infectious disease presupposes a
cause acting by hidden influences, like the miasma of prison ships
or marshes, etc., or through the pollution of water or the
atmosphere, or from the various dejections from animals. The word
"contagious," however, is often used in a similar sense of
"pestilential" or "poisonous," and is not strictly confined to
influences emanating directly from the body. As applied to Texas
fever, the difference would be that if the word were strictly
construed, it would follow that the disease must be communicated
directly from one animal to another, while if it were infectious,
it would be communicated by cattle carrying the germs of the
disease from the infected district, and depositing the same upon
the range and waters occupied by other cattle susceptible to the
infection, so that they would become infected therefrom. This was
the finding of the court with respect to the disease in question.
The difference is quite immaterial in this case, however, as the
allegation of the second count is that plaintiffs' cattle were
healthy, and were "especially free from a certain contagious,
noxious, dangerous, infectious, and fatal disease commonly known as
the "Texas cattle fever;" that with knowledge of this fact,
defendants turned upon plaintiffs' land and premises their own
cattle, which were "infected with a noxious, dangerous, and fatal
disease, commonly known as the "Texas cattle fever." And elsewhere
defendants' cattle are spoken of as infected with "the said
contagious disease," which they communicated to plaintiffs' cattle.
It is evident that the words "infectious" and "contagious" were not
used in any technical sense or with any intention of averring that
plaintiffs' cattle became ill from a contagious, as distinguished
from
Page 163 U. S. 478
an infectious, disease, and that, reasonably construed, it was
only intended to aver that defendants' cattle were afflicted with
the Texas cattle fever, and that by the negligence of the
defendants they communicated it to the plaintiffs' cattle. The
general words "contagious," "noxious," "dangerous," "infectious,"
and "fatal" are evidently intended to be limited by the specific
words "Texas cattle fever," and not to raise a medical question
whether Texas cattle fever is, strictly speaking, contagious or
infectious.
(c) There is also an allegation in the second count that the
plaintiffs kept and grazed their cattle on certain lands of which
they were possessed in the County of Sierra; that while so grazing
upon said lands, defendants drove and pastured their cattle upon
these lands, and there communicated to them the disease in
question; while the finding of the court in that connection was
that it could not be determined
"whether Lynch Brothers� cattle contracted the disease on the
road, or on their own range, or on Grayson's range, owing to the
indiscriminate mixing of them with Grayson & Co.'s cattle on
both ranges."
It certainly would not be claimed that the fact that plaintiffs
could not prove whether the disease was communicated to their
cattle while upon their own lands or elsewhere would prevent their
recovery, if the disease were communicated either in one place or
the other. In such case, if the description be wholly immaterial,
it may be averred to have happened either in one place or the
other, and the fact that it was impossible to tell exactly where
the tort took place would not constitute a variance. It is said by
Chitty (Pleading, 410) that
"where the place of doing an act is precisely alleged, if the
description be wholly immaterial, the ground of charge or of
complaint not being local, the description may perhaps be rejected
as surplusage, as if, in trespass for taking goods, the declaration
were to allege that they were taken 'in a house,' it would seem to
be sufficient to prove that they were taken elsewhere, unless
indeed a local trespass as to the house be laid in the same
court."
In
United States v. Le
Baron, 4 Wall. 642,
71 U. S. 648,
it is said that allegations of time, quantity, value, etc., need
not to be proved with precision, but that a large
Page 163 U. S. 479
departure from the same is allowable. The same rule also applies
to allegations of place.
See also Pope v. Allis,
115 U. S. 363,
where proof of the delivery of iron at a different place from that
alleged in the complaint was held to have been properly admitted,
defendants having failed to prove that they were misled by the
variance between the averment and the proof.
Peck v.
Waters, 104 Mass. 345, 351.
Besides this, however, none of the alleged variances appear to
have been called to the attention of the district court at any time
during the trial, or in any of defendants' numerous objections to
the introduction of testimony, or otherwise, nor are they noticed
in any one of the fifty assignments of error filed in the supreme
court of the territory. If it were not too late to raise any of
these questions at this time, the fact that they were never raised
before would be a complete answer to any claim that defendants
could have been misled by such variances.
Liverpool &c.
Ins. Co. v. Gunther, 116 U. S. 113;
Bell v. Knowles, 45 Cal. 193;
Giffert v. West, 33
Wis. 617.
3. Objections were taken to the testimony of three witnesses --
Speed, Halleck, and Hargrave -- upon the ground that, not being
experts, they were permitted to say that the disease with which
plaintiffs' cattle became affected was ordinarily called "Texas
fever." These witnesses, however, were not called as experts, nor
did they purport to testify in that capacity. They testified fully
as to the symptoms of the disease with which plaintiffs' cattle
were afflicted, the resemblance of these symptoms to such as they
had previously observed in other cattle, stating that the disease
was generally called "Texas fever." These were evidently matters of
common observation. These witnesses did not claim to testify of
their own knowledge as to the name of the disease, but merely as to
the symptoms they observed, and that cattle so afflicted were
ordinarily spoken of as having Texas fever.
4. The objection to the admission of a certain document, tending
to show title to some of the lands in the plaintiffs, is obviously
untenable inasmuch as there was no finding of title in them, and
the document appears to have been admitted
Page 163 U. S. 480
simply for the purpose of showing that plaintiffs were not mere
trespassers upon the property. The fact that they were in
possession was not controverted, and their rights as against the
defendants did not even depend upon the lawfulness of such
possession. The manner in which they took possession, or the
validity of their title, was wholly immaterial.
5. Fourteen assignments of error are addressed to the admission
of the depositions of Salmon and Detmers, who testified as experts
to the nature and symptoms of the disease and to the fact that
there were certain districts infected with the fever. Salmon
resided in Washington, was a professor of veterinary medicine,
chief of the United States Bureau of Animal Industry, and at the
time in the service of the United States government. He had held
this position for more than ten years; had been chief of the
Veterinary Division of the Department of Agriculture; had been in
the employ of the Department of Agriculture, investigating the
diseases of animals, for over fifteen years, and was called to
Washington about 1883 in the discharge of his duties. He had
investigated the disease known as the "Texas fever." Detmers
resided in Illinois, was a veterinary surgeon, and had been in the
employ of the Department of Agriculture for the purpose of
investigating contagious, infectious, and epizootic diseases of
horses, cattle, and swine, and had investigated the disease known
as "Texas fever," and was acquainted with its symptoms and
diagnosis; had made a good many
post mortem examinations
of cattle that had died with it, and was familiar with the disease.
If these gentlemen, who were connected with the Department of
Agriculture and made a specialty of investigating animal diseases,
were not competent to speak upon the subject as experts, it would
probably be impossible to obtain the testimony of witnesses who
were. The fact that they spoke of certain districts of Texas as
being infected with that disease was perfectly competent, though
they may never have visited those districts in person. In the
nature of their business, in the correspondence of the department
and in the investigation of such diseases, they would naturally
become much better acquainted with the districts where such
diseases
Page 163 U. S. 481
originated or were prevalent than if they had been merely local
physicians and testified as to what came within their personal
observation. The knowledge thus gained cannot properly be spoken of
as hearsay, since it was a part of their official duty to obtain
such knowledge and learn where such diseases originated or were
prevalent and how they became disseminated throughout the country.
Spring Co. v. Edgar, 99 U. S. 645;
State v. Wood, 53 N.H. 484;
Dole v. Johnson, 50
N.H. 452;
Emerson v. Gaslight Co., 6 Allen 148. While it
is possible that some questions may have been asked of these
witnesses which were irrelevant, immaterial, and incompetent, the
reception of such evidence, as already observed, does not vitiate
the findings of the court, or entitle the party to a new trial.
The objections to the testimony of these witnesses are so
numerous we have not deemed it necessary to examine them in detail.
We are satisfied that there was nothing that went to their
competency as experts.
As one of these witnesses testified that Oak and Bee Counties in
Texas were known to be permanently infected with the fever, and as
the court found that these counties were a part of the infected
district and also found that the cattle in question were shipped
from those counties into the Territory of New Mexico and that the
defendants were notified by the plaintiffs of the existence of such
disease in these counties at the time they drove their cattle
across plaintiffs' range, and as there was evidence tending to show
notice to the defendants of the disease in their own cattle, and of
the liability to communicate the same to plaintiffs' cattle, and
that they were requested to abstain from driving them over
plaintiffs' range, we see no reason for attacking the findings of
the court in this connection and none that would authorize us to
infer that defendants did not have the requisite notice to render
them chargeable.
6. Error is also assigned upon the ground that it appears from
the special finding of fact that plaintiffs were guilty of
contributory negligence in allowing their cattle to range, graze,
and water on defendants' range with their cattle, and
Page 163 U. S. 482
made no effort to prevent them from doing so, or to aid in
keeping defendants' cattle off their range. In this connection the
court found that the cattle of defendants Grayson & Co., were
driven from the railway station along the public road, through the
range where the plaintiffs' cattle grazed, by eighteen men.
"They were driven straight on the road, and were strung out, and
men placed on each side of them to keep them in the road, and one
or two ahead to keep the herd on the road, and drive away any other
cattle that might be in the way, and keep them back from the herd.
They were generally kept within twenty yards of the road on either
side, and often in less space. They were kept as close together as
possible. They did not get outside of that space. Only a few other
cattle were seen along the road while driving, and such were driven
away. No cattle not belonging to the herd got into it, or mixed up
with it, while crossing plaintiffs', Lynch Brothers', range. They
were driven without stopping from the time they got within sight of
where Lynch Brothers claimed their cattle range to the Percha
River, inside of the defendants', Graysons', range, where about
four hundred were stopped, and others taken on to other parts of
the range of defendants. Grayson & Co.'s range extended south
of the Percha River one-half or three-fourths of a mile."
"Plaintiffs were informed by the man who was in charge of
defendants' cattle when they came up that they came from San
Antonio, Texas. Neither plaintiffs' nor defendants' range was
fenced, but the cattle ranged at will, except that defendants,
Grayson & Co., placed men at the Percha River, near the
dividing line between the two ranges, and tried to keep the cattle
back on each range, and requested plaintiffs, Lynch Brothers, to do
the same, and put a number of men there to help them; but Lynch
Brothers declined to do so, saying they were there first, so it was
impossible to keep the cattle of the two ranges from going from the
one to the other. Lynch Brothers' cattle in large numbers went up
onto Grayson & Co.'s range, and Graysons' cattle in large
numbers went down onto Lynch Brothers' range. Grayson & Co. at
times rounded up their cattle and
Page 163 U. S. 483
drove them off of Lynchs' range, but Lynch Brothers did not
drive their cattle back off Graysons', nor do anything to prevent
their going there. When the cattle passed from one range to the
other, they mixed with the cattle on the range to which they went,
and grazed on the same pasture and drank of the same water.
Defendants from time to time drove their cattle back from
plaintiffs' range to their own, the last time just prior to
September 8, 1884. Lynch Brothers made no effort to prevent their
cattle from going on Grayson & Co.'s range or from watering at
the same holes and grazing and feeding on the same pastures and
ranging with Grayson & Co.'s cattle which came from Texas in
1884, but allowed them to do so in large numbers."
"Lynch Brothers made no effort to keep Grayson & Co.'s
cattle off their range and from grazing and feeding on the same
grasses and ranging with their cattle and watering at the same
watering holes with them, but when Lynch Brothers' cattle went onto
Grayson & Co.'s range they would drift back to Lynch Brothers'
range, carrying with them large numbers of Grayson & Co.'s new
cattle, which had not become so thoroughly located as to keep them
on their own range."
While the court, from this testimony, might have found that the
plaintiffs did not use all the precautions that were possible to
prevent the infection of their own cattle, it was not bound to find
that they were guilty of contributory negligence in this
connection. It did not seem to be the custom in that part of the
country to fence the ranges, and the plaintiffs were not bound to
put themselves to sole expense of preventing their cattle from
being intermingled with those of the defendants in order to escape
the possibility of infection, since in doing this, they might be
put to a very large expense without the possibility of recovering
the same from the defendants unless they could prove that
defendants' cattle were in fact diseased and that the precautions
taken by them had in fact saved their own from infection. Upon the
contrary, the defendants, having been apprised of the fact that
their cattle were or might be infected, were bound to prevent
such
Page 163 U. S. 484
infection's being communicated to the plaintiffs' cattle. By the
sixth section of the Act of Congress of May 29, 1884, for the
establishment of a bureau of animal industry, 23 Stat. 51, it is
provided that no railroad company shall receive for transportation,
or transport, from one state or territory to another, any livestock
affected by any contagious, infectious, or communicable
disease.
"Nor shall any person, company, or corporation deliver for such
transportation to any railway company . . . any livestock, knowing
them to be affected with any contagious, infectious or communicable
disease; nor shall any person, company or corporation drive on foot
or transport in private conveyance from one state or territory to
another . . . any livestock, knowing them to be affected with any
contagious, infectious or communicable disease,"
etc. If defendants had knowledge of the fact that their cattle
were infected with Texas fever, they were guilty of a violation of
the statute in delivering them to the railway company for
transportation to New Mexico, and the duty devolved upon them of
using all necessary care to prevent their communicating the disease
to healthy cattle. What care it was necessary for the plaintiffs to
take in that connection depended upon circumstances, and was a
proper question for the court.
In one view of the case, it might be said that the plaintiffs,
having knowledge that defendants' cattle were or might be diseased,
were guilty of contributory negligence if they did not use every
possible precaution to prevent the spread of the disease to their
own cattle. This, however, might be an unjust rule applicable to a
particular case, since it would shift upon the plaintiffs the
entire duty and expense of avoiding the contagion when the
defendants were the sole cause of the disease's being introduced
into that neighborhood. It was for the court to judge from the
testimony what precautions the plaintiffs, in the reasonable and
proper care of their own cattle, were bound to take, and it is
evident from the ultimate finding of the liability on the part of
the defendants that the court must have found that under the
circumstances of the case, the plaintiffs were not guilty of
contributory negligence. There
Page 163 U. S. 485
are in reality two entirely separate findings of facts in the
case, the first one of which is much more specific than the other,
but contains evidence of facts as well as the facts themselves, but
is less complete than the "statement of further findings of facts
and conclusions of law," which is practically a finding of the
ultimate facts of the case, and of the conclusion that, from the
facts so found, the plaintiffs are entitled to judgment. There is
no finding of contributory negligence on the part of the
plaintiffs, nor do we think that the facts as found compel the
conclusion that the plaintiffs were guilty of such negligence.
Other errors are assigned which it is unnecessary to notice in
detail. Most of them are covered by those already discussed, and
some of them are so obviously frivolous as to require no
discussion.
It is to be regretted that defendants found it necessary to
multiply their assignments to such an extent, as there is always a
possibility that, in the very abundance of alleged errors, a
substantial one may be lost sight of. This is a comment which
courts have frequent occasion to make, and one which is too
frequently disregarded by the profession.
There is no error in this case of which the defendants are
entitled to complain, and the judgment of the court below is
accordingly
Affirmed.
MR. JUSTICE FIELD dissented.